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Desperate lawyers flout law

Caswell Tlali


MASERU – A storm is brewing in the legal fraternity.

It revolves around some advocates who are illegally appearing in court without instructions from attorneys.

It is illegal for an advocate to appear in court without instruction from an attorney.

An attorney is a senior lawyer who instructs an advocate to appear in court and perform other legal services.

One has to qualify to become an attorney by passing rigorous attorney examinations first.

An advocate is in general a lawyer who argues in court but only after getting instructions from an attorney.

Without the attorney’s instructions they are not allowed in court.

Close to 99 percent of the nearly 800 registered lawyers in this country are advocates.

There are less than 12 attorneys in Lesotho.

According to the law, an advocate is not allowed to deal with clients directly or take money from them.

Advocates are supposed to get paid by attorneys who instruct them.

The client pays the attorney who in turn pays the advocate.

Yet for years advocates in Lesotho have been wilfully breaching this cardinal rule.

An investigation by the Sunday Express has revealed that as the number of lawyers in the country increases — fed largely by mass production from the National University of Lesotho (NUL) – and the competition for clients intensifies, some advocates have started appearing in court without instructions from attorneys.

The investigation has discovered that some desperate advocates have even resorted to faking attorneys’ signatures on their papers just to appear in court.

A prominent attorney who refused to be named said he was recently shocked when he discovered that a young advocate had faked his signature to make it look like the attorney had instructed him.

With that faked signature the advocate had managed to get a court order for a client he was representing.

But what the advocate didn’t know was that the person he was representing was actually suing the attorney’s client.

After receiving the court order the attorney’s client confronted his attorney and accused him of double-dealing.

When the attorney checked the court papers he found that the advocate in the case had forged his signature.

This paper has seen the court papers that bear the fake signature and the name of the advocate is known as well.

The case is expected to be heard next week.

The attorney however said the forged signature incident did not shock him because he had heard similar complaints from other attorneys.

“To me this was part of a broader disregard of the law and duties of the attorneys that has become prevalent in the judiciary,” he said.

“In this case the advocate had not only abused my name but he had also illegally appeared in court.

“But beyond that he had collected money from a client when he was not supposed to.”

Other attorneys say they can’t take it anymore.

They accuse the Law Society, the statutory body that registers lawyers, of turning a blind eye to these illegal activities.

“There seems to be a general lack of interest in this serious scandal,” said another attorney who refused to be named saying the “other lawyers might ostracise me”.

But the problem goes deeper.

Only attorneys are allowed to register companies, draft divorce summons and run estates.

Also, only attorneys are allowed to work as liquidators of companies and judicial managers.

Yet for years advocates have been illegally handling such cases with no questions from either the Law Society or the bench.

“Some advocates have been appointed liquidators,” the attorney said.

“According to the law advocates caught doing this should be struck off the register.

“But because no one is taking this matter seriously no one will be punished.”

There is a precedence that shows how seriously these breaches should be taken.

In 1979 one Advocate Karim who was dealing with clients directly and was receiving money from them was found guilty by the High Court and was struck off the lawyers’ register.

A judge who presided over the case said this business of advocates taking money from clients doing attorneys’ job had been going on for some time.

The judge said it was illegal and should be stopped.

Since then no advocate has been arraigned for similar breaches yet they do it all the time, the attorney said.

Law Society president Advocate Zwelakhe Mda said no attorney had raised this matter with him.

He however said “if indeed it is happening then it’s professional misconduct who the Law Society takes seriously and will deal with”.

He said he did not rule out that there could be some “bad apples in the fraternity who have become so desperate that they engage in such illegal activities”.

But a judge who spoke to this paper described such cases as “prevalent” in the High Court.

The problem, he said, was that there was no clear register from the Law Society to show who is an attorney and who is an advocate.

“They are breaking the law and the Law Society is aware of it,” he said.

He said the problem started in the early 1990s because “for some time there were very few attorneys in Lesotho that it was felt it was unfair to expect all advocates to get instructions from them”.

NUL is producing about 100 law graduates annually compared to less than 10 in the 1960s.

“They are hush-hush about the anomaly,” the judge said.

“I assume it’s because most of their leaders are advocates and therefore this situation favours them.”

The standards in the fraternity have gone down as well, the judge said.

“Sometimes you wonder whether some of these lawyers have been to law school at all or not,” he said.

“It’s shocking at times when you watch a lawyer sinking his client’s case with poor arguments. It’s pathetic.”

Advocate Eliot Makhera told this paper in an interview that the problem could be solved by strictly abiding by the Legal Practitioners Act.

“If this Act is followed to the letter every advocate will make sure that he does not get on the other side of the law,” Makhera said.

“Also the advocates will feel the need to write examinations to become attorneys so that we will have many attorneys.”

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